Legislating Morality

Fifty years ago, in 1964, the US Civil Rights Act came into being, signed into law by President Lyndon B. Johnson. The purpose of the law was to make discrimination based on race, religion, color, national origin, and gender illegal. Other protected classes were added over time, such as age in 1967. Beyond simply making discrimination illegal the legislation was attempting a feat of social engineering, changing behavior. And while one could argue that tremendous strides have been made, make no mistake about it, there is still plenty of discrimination going on today.

But questions arise for those of us who work in the space of behaviors and attitudes. Can attitudes and opinions, can thought patterns and morality be created by legislation? Does legislation and prosecution for violations of that legislation create morality or only an illusion of morality? And if people are behaving according to moral principles, but in their hearts feel differently, do we care?

While we could argue endlessly whose standards of morality, or which cultures and norms we will accept as “moral”, putting all that aside for a moment, the answer from a social engineering perspective is very clearly that legislation can change behaviors and over time those behavior changes will result in attitudinal shifts. In other words legislation does have the power to affect behaviors, and partly though the power of cognitive dissonance, partly through the power of modeling others in the community, over time thought patterns can be altered. Perhaps not for everyone, and not in every instance, but changing behaviors can lead to attitudinal shifts in a large population.

The attempt to legislate behavior is nothing new, as there were many ancient legal codes aimed at instructing people how to live their lives in an attempt to instill order in society. One well known early attempt at legislating morality occurred under the Babylonian ruler Hammurabi about 3800 years ago. The Code of Hammurabi consisted of 282 laws by which people were to live their lives. Hammurabi’s code was the source of the saying “an eye for an eye”. (“If a man put out the eye of another man, his eye shall be put out.”) And it is likely the earliest instance of medical reimbursement legislation. (“If a physician make a large incision with an operating knife and cure it, or if he open a tumor (over the eye) with an operating knife, and saves the eye, he shall receive ten shekels in money”). But medical malpractice carried stiff penalties under Hammurabi. (“If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off”).

An even older set of laws, originating about 300 years before Hammurabi, was created by the king of Ur and called the code of Ur-Nammu. Some of those very ancient laws we would recognize today (“If a man commits a murder, that man must be killed”). And some would be somewhat foreign to us today (“If a man is accused of sorcery he must undergo ordeal by water; if he is proven innocent, his accuser must pay 3 shekels”).

And almost 1000 years later on Moses brought down a set of laws from Mt. Sinai which also was aimed at describing to people how they were expected to behave and live their lives, a moral code (e.g. “You shall not murder”).

While there were certainly differences among these legal codes, there were also some very interesting similarities. For instance look across these 3 sets of moral codes, originating thousands of years apart regarding what they have to say about bearing false witness.

Ur-Nammu (4100 years ago) – “If a man appeared as a witness, and was shown to be a perjurer, he must pay fifteen shekels of silver.”

Hammurabi (3800 years ago) – “If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.”

And today in the USA (18 U.S. Code § 1621) perjury is still a crime – “…is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both.”

Apparently bearing false witness has been an on-going problem since the dawn of civilization or there would have been no need to call it out specifically in each of these moral codes.

More recently the case for legislating morality can be seen with the advent of laws in favor of marriage equality and other equal benefits for the LGBTQ community. In this particular case it seems that the attitudes of the population in general were ahead, and perhaps still are ahead of those in various legislative bodies in the USA. There are of course segments of the population who vehemently oppose equal rights, just as there were those who supported Jim Crow laws in the south. What will likely happen to that group? As LGBTQ rights become more widespread, and people/states are held accountable for violation of those rights, the act of behaving in a fashion supportive of those rights will be seen as:

normal – people will want to be similar, including in attitudes) to the vast majority of people they are surrounded by (Paraphrasing Tversky & Kahneman 1974, “People will maintain a belief in a position when surround by a community of like-minded believers”).

And again, potentially not everyone’s beliefs will positively shift in every instance (even among those suffering from cognitive dissonance), but across the larger population continuing shifts in attitudes could be measured.

As an aside, in the world of survey research, once we have reached a 51% response rate, in order to drive additional responses, we use this notion to our advantage, by sending out reminders along the lines of, “the majority of people have completed the survey, don’t miss this opportunity to voice your thoughts”). It works.

Today the US military is struggling with the issue of sexual harassment in its ranks. The military code (e.g. article 93 – regarding cruelty and maltreatment) has various statutes in place by which personnel can face court martial trails for sexual harassment offenses. But the rules have been rarely enforced with harsh measures, especially for those with higher rank. Can the military legislate attitudinal shifts among service members? Can they eliminate sexual harassment by simply telling people “don’t do it”? That is a necessary step. And certainly enforcement must be more uniform across the military and the legislation must be seen as having some teeth. But the military must also build standards of behavior that become “normal” and which don’t include sexual harassment behaviors. Once the behaviors are in place attitudes can shift. If all you do is work on attitudes but the old behavioral standards are still there, the attitudes shifts will not “take”.

Legislating morality is possible, but over the long term true shifts in attitudes can only happen if they are supported by the corresponding behaviors.